There will have been many family lawyers who were eagerly awaiting the decision that was handed down in the case of Whigham v Owen last week, and who will be carefully dissecting every word of Lord Drummond Young’s opinion. After all, it is the first reported decision on cohabitants’ rights since the Supreme Court issued its landmark ruling in Gow v Grant.
But while lawyers feverishly pull out their files and seek to apply the decision to ongoing cases, for the majority of the population the case will not have even featured on their radar.
So what does the decision in Whigham v Owen mean to the ‘ordinary’ man or woman in the street?
To answer that we need to briefly look at the facts of the case. Both Jacqueline Wigham and Steven Owen were the ‘ordinary’ man and woman in the street. They were in a relationship and cohabited for over 26 years. They lived together from July 1984 to January 2011. They had three children together. Jacqueline helped out in Steven’s several businesses throughout the cohabitation. She took telephone orders and bookings, carried out some book-keeping, did the cleaning and cooking in a hotel that he at one time operated as a business, and she had the main responsibility for raising the children and looking after the house in which they all lived.
When they met Jacqueline was a commis chef, she had no assets and lived with her mother. Steven worked as a plumber, having completed his apprenticeship two or three years previously. He had assets which the court valued at approximately £2,000. By the time their cohabitation ended their combined assets were valued by the court at £758,000. Of that sum, £10,331 of assets were owned by Jacqueline and the remaining £747,669 were owned by Steven, including the family home.
After the relationship broke down Jacqueline moved out of that family home and at the time of the court action was living in a property rented from the local authority, unemployed and in receipt of benefits. Steven, meanwhile, continued to live in the family home, valued at £387,500. He was earning in excess of £54,000 per year and maintained that Jacqueline was not entitled to share in his wealth.
Jacqueline and Steven’s relationship had lasted far longer than most marriages now do. To the outside world it may have appeared as if they were married; but they were not. Had they been married it would not have mattered that the majority of the assets were in Steven’s name alone. They would have been classed as matrimonial property and it is likely that Jacqueline would have been awarded the 50 per cent that she sought.
But for the Family Law (Scotland) Act 2006 which introduced certain rights for cohabitants Jacqueline may well have found herself continuing to live in the rented property, with minimal income and with no rightful claim against Steven’s assets. Under the provisions of that Act, however, she was able to bring a claim against Steven for payment of a capital sum. The Act sets out a number of factors that the courts have to take into account when deciding whether to grant such an order and how much to award. Since its introduction there has been much criticism of the Act from lawyers and sheriffs alike due to the lack of any guidance within the Act on how to calculate the amounts to award.
This and the “enormous difficulty in practice” of applying the law was commented on by Lord Drummond Young when giving his opinion in this case. He referred to the case of Gow v Grant in which Lord Hope stated that “regard must be had to where the parties were at the beginning of the cohabitation and where they were at the end”.
Lord Drummond Young also stated that “the overriding principle was one of fairness rather than precise economic calculation”. He made reference to the “substantial” contributions that Jacqueline had made to the various businesses operated by Steven and the “great effort into looking after the family” that she had made. He stated that, had they been married, Jacqueline would have been entitled to an award of 50 per cent but that this was not appropriate in cases of cohabitation. He went on to say that this particular case lies towards the upper end of the range of awards that might be made to cohabitants and he ordered Steven to make a capital payment of £250,000 to Jacqueline.
According to a recent report on cohabitation in the UKby the Office for National Statistics, there were 5.9 million people cohabiting in the UK in 2012, double the 1996 figure. Cohabitation is the fastest growing family type in the UK. 39 per cent of opposite sex cohabiting couples had dependent children, compared with 38 per cent of married couples. Although there is no such thing as common law marriage in UK law, 58 per cent of people who responded to the British Social Attitudes Survey in 2006 thought that unmarried couples who live together probably or definitely had a ‘common law marriage’ which gave them the same rights as married couples.
The Family Law (Scotland) Act 2006 acknowledged the changing landscape of family types by providing certain limited rights to cohabitants. The cases of Gow v Grant and now Whigham v Owen provide lawyers and Sheriffs with some guidance on how to apply the provisions within the Act. But, as can be seen from the Whigham v Owen case, the calculation of the amount of the award is still very much left to the discretion of the court. Lord Drummond Young provides no explanation of how he arrived at the figure of £250,000 other then to state that such a figure “ was appropriate”.
Where does that leave lawyers? In my view it has changed our position very little other than to give an indication of what the upper end of the range of awards available under the Act might be, in these particular circumstances. Each case will continue to be determined on its own facts and circumstances. The uncertainty as well as the discretion afforded to the courts both make it difficult for a lawyer to advise a client as to the amount of any likely award. Add to this the requirement that such claim needs to be brought within 12 months of the cohabitation ending, along with the general public’s lack of awareness of either cohabitants’ rights or the fact that these are not like those of married couples, and lawyers can often find themselves in a difficult position when asked about the prospects of success in making or defending such claims.
For anyone who is currently in a cohabiting relationship – or about to embark on one there is an option that would avoid such uncertainties in the future. It is possible to enter into a legally binding agreement with your partner. In this you would both agree what should happen to your assets in the event that your relationship breaks down. No-one enters such a relationship wanting it to fail, but the sad reality is that many relationships, married and unmarried, do fail and a costly court battle can then follow with no guarantee of success.
She has particular experience advising and acting for armed forces personnel and has wide experience in identifying situations where the election of one UK jurisdiction resulted in a more favourable outcome for the client. Clients are regularly referred to her by other solicitors within Scotland where issues of English jurisdiction are pertinent.
Denise is a member of the Scottish Family Law Association, sits as an independent director of a charitable trust established to provide sport and leisure facilities to the local community and on weekends can either be found on the tennis courts or sailing in the waters of the west coast of Scotland.